The Line Item Veto Act, signed into law in April 1996, is expected to significantly increase presidential power and further complicate the budgetary process. It also represents a distinct threat to judicial independence. The new law authorizes the president to cancel three types of tax and spending items: any dollar amount of discretionary budget authority, any item of new direct spending (entitlements), and any limited tax benefit. The president may terminate such items whenever he determines that cancellation will reduce the federal budget deficit, not impair any essential government functions, and not harm the national interest. Congress would have thirty days to disapprove the cancellations, but this legislative response would be subject to a presidential veto. The new presidential authority remains in place for eight years, expiring at the end of calendar year 2004.

The Early Rounds. In 1995, the House Committee on Government Reform and Oversight and the Senate Committee on Governmental Affairs held joint hearings on the line item veto bill. Judge Gilbert S. Merritt, chairman of the Executive Committee of the Judicial Conference of the United States, testified that "we in the judiciary have some serious concerns about giving the president the line-item veto over the various accounts of the judicial budget." He recognized that Congress had full power to decide the funding of the judiciary, but Congress "does not litigate cases before the courts. No conflicts of interest in litigation arise for judges with Congress." Merritt noted that the president and the Department of Justice litigate approximately half of the cases in the federal courts. The executive branch, he said, "is very often upset with our rulings," and he offered some examples of executive counterattacks: President Jefferson seeking to impeach federalist judges; President Jackson with his reputed "the judges have made their decision, now let the [expletive deleted] enforce their judgment"; and FDR’s effort to pack the courts.

The result, Merritt said, puts the federal courts in a difficult position. If the president were to exercise item veto power against the judiciary, "we are, unlike Congress, basically defenseless. We have no power to override his veto and we are prohibited from engaging in politics." To permit the president and the Department of Justice to control the judicial budget "would endanger the integrity and the fairness of the judiciary." Litigants against the Department of Justice would "legitimately doubt the capacity of the courts to dispense evenhanded justice if we have to look over our shoulder to a line item veto by the president." The consequence would be further erosion of "public trust in the courts." Because of these factors, Merritt recommended that the judiciary be excluded from the item veto bill.

Merritt’s prepared testimony identified two statutes in which Congress specifically recognized the need for judicial independence from the executive branch. The Budget and Accounting Act of 1921 provides that requests for appropriations for the judicial branch shall be transmitted by the president to Congress "without change." Judicial estimates could be changed by Congress, not by the president. To Merritt, it seemed "inconsistent to prohibit the executive branch from changing the judiciary’s budget prior to submission, but then to give the president unilateral authority to revise an enacted budget."

The second statute created the Administrative Office of the U.S. Courts, in 1939. Before that legislation, budget submissions and all other administrative support services for the lower federal courts were handled by the Department of Justice. Economic conditions during the Great Depression caused conflicts between the executive branch and the judiciary. After the Department of Justice repeatedly cut judicial items, federal judges complained and pressed for legislative relief. Congress created the Administrative Office of the Courts, Merritt said, "to protect the independence of the Third Branch."

Reflecting this historical perspective, Congressman James P. Moran (D-Va.) offered an amendment to exclude the judiciary from the reach of the line item veto during committee deliberations. It lost, 17 to 29. Moran tried again during House floor action, but it was rejected 119 to 309.

During hearings held by the Senate Committee on Governmental Affairs, I testified against the item veto proposals by identifying several institutional and constitutional issues. I began with the risk to judicial independence. I asked: "Should the president have the rescission power as a tool to be used in a punitive way against the judiciary?" In reviewing the Budget and Accounting Act of 1921 and the creation of the Administrative Office in 1939, I pointed to the anomaly in the 1930s of having the Justice Department handle the administrative and budgetary affairs of the judiciary. The attorney general fixed the number and salaries of court clerks and their deputies, of judges’ secretaries, and the amount and character of equipment for their use. He controlled travel arrangements and expenses of judges and clerks, and the salaries of judges. He prepared and presented to the Budget Bureau an estimate for the expenses of courts. I concluded that exempting the judiciary from line item authority would not make federal courts immune from budget discipline. The judiciary would still have to defend the budget estimates it presents to Congress. Moreover, I did not think that exempting the judiciary would not trigger a domino effect, justifying similar treatment for other federal agencies. I stressed that the principle of judicial independence is unique and is not transferable to other federal activities.

Senator Orrin Hatch (R-Utah) eventually offered a floor amendment to exclude the judiciary from the item veto. It was tabled, 85 to 15.

Continuing Tensions. When a draft bill was finally prepared for House and Senate action, L. Ralph Mecham, secretary of the Judicial Conference of the United States, wrote to Senators Ted Stevens, chairman of the Senate Committee on Governmental Affairs, and Pete V. Domenici, chairman of the Senate Budget Committee. Mecham said that the judiciary "had concerns over some previous versions of the legislation that were considered by the House and Senate." He informed them that the judiciary believed that "there may be constitutional implications if the president is given independent authority to make line-item vetoes of its appropriations acts. The doctrine of separation of powers recognizes the vital importance of protecting the judiciary against interference from any president." Control of the judiciary’s budget "rightly belongs to the Congress and not the executive branch, particularly in light of the fact that the United States, almost always through the executive branch, has more lawsuits in the federal courts than any other litigant. The integrity and fairness of our federal courts should not be endangered by the potential of executive branch political influence."

If the new law operates as a threat (implied or real) to judicial independence, federal judges may have to consider whether the statute is unconstitutional on that ground. Litigation challenging the Act has already commenced. In April 1997, the U.S. District Court for the District of Columbia ruled the line item veto unconstitutional on grounds other than judicial independence. The case was appealed to the Supreme Court, which disposed of the matter on procedural grounds without addressing the constitutional question. Notwithstanding this development, if litigants fail to emphasize judicial independence concerns in the future, judges can bring their own action. Under the separation of powers, each branch is supposed to defend its own prerogatives.

Louis Fisher is the senior specialist in separation of powers, Congressional Research Service, The Library of Congress.

This article is an abridged and edited version of one that originally appeared in The Judges’ Journal, Winter 1997 (36:1).